- Married Women and the Law: Coverture in England and the Common Law World ed. by Tim Stretton and Krista J. Kesselring
Coverture was the legal doctrine that decreed that, upon marriage, a woman’s property passed into the hands of her husband. All her real property (land) came under his control, and while he could not sell it without her consent, he took all the income and profits from it. All her other property, including her future earnings, became his outright. Under coverture a married woman could not enter into a contract, make a will, or bring or defend a lawsuit on her own. Coverture was law throughout the common-law world for about 700 years, and vestiges of it remain. Did you know, for instance, that the custom of taking a husband’s surname on marriage derived from coverture, when, as Sara M. Butler puts it, a woman became “Mrs. Him”? This is one of the many insights that this comprehensive collection provides.
Coverture did not mean, however, as many modern legal scholars assume, that a married woman had no legal personality, still less that she became her husband’s property. Although presumed to be acting under his direction, a married woman could still independently be found guilty of crimes, including murder. She could in certain circumstances sue for debts on behalf of her husband or herself. Moreover, in spite of William Blackstone’s oft-quoted dictum—it is better that ten guilty persons escape than that one innocent suffer—what is interesting about coverture is that it operated in different ways across time and place, as the wide-ranging chapters in this book demonstrate. Even though, as the editors observe, “it was within marriage that the law most rigorously entrenched the subordination of women to men,” many wives led independent lives, found ways around their legal limitations, and embarked on litigation far more often and more effectively than has generally been understood. In England the ecclesiastical courts allowed women to pursue lawsuits in their own names, while the developing equitable jurisdiction and increasing use of the trust afforded them the possibility of controlling their own separate property. In the North American jurisdictions examined here, however, coverture was more rigidly enforced, a finding that challenges the received idea that women were freer in the former colonies than in England.
It is in the sheer range of coverage that this book most impresses. The eleven chapters, products of an interdisciplinary workshop held in Halifax, Nova Scotia, allow for fascinating comparisons in their coverage of both English and North American jurisdictions and of differing and overlapping legal rules and ideologies. They also traverse an unusually long span of time, from the medieval period to the late nineteenth century. There are contributions from literature, history, gender studies, [End Page 328] and law, drawing on a rich variety of sources, from literary and dramatic texts to legal documents both familiar (legislation and case law, including detailed empirical surveys of the latter) and less so (medieval yearbooks and seventeenth-century printed powers of attorney). All combine to enrich our understanding of the workings of coverture and its impact on women’s lives.
The book’s other great value lies in the way it demonstrates the error of assuming law’s progressive trajectory from medieval darkness toward today’s gender “equality.” It shows how women’s position often became more limited at the very moment that rights were being extended to other groups and how, when one aspect of coverture was dismantled (as with the passing of the first Married Women’s Property Act in England), another was reinforced (with the passing of the Nationality Act of the same year, obliging women to take their husband’s nationality on marriage). In the end, this book not only renders the idea of steady progress untenable but shows that reform for women, when it came, was not impelled solely by burgeoning liberalism, nor was just a result of successful feminist campaigns, but came about...